The Federal Reporter with Key-Number Annotations, Volume 272: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, June-August, 1921. Page: 16
The following text was automatically extracted from the image on this page using optical character recognition software:
272 FEDERAL REPORTER
tended to preserve the form which the instrument had when presented
to the court.
 Confronted, then, with this doubtful question of intent, how
shall it be resolved? In considering an ambiguous contract, the courts,
lacking a better aid, assume that the parties intended the thing which
was reasonable and natural and which it may be presumed they would
have done, rather than the unreasonable and improbable; in construing
a doubtful order of the court below, the reviewing court presumes that
it was intended to be as it should have been, and will not read such
an order so as to make it erroneous if it may as well be read so that
it is right. We see no reason why we should not treat this question in
the same way, and consider what the probate court ought to have done
in this respect, in order that, if it shall appear that one construction of
its order makes it natural and rightful and the other makes it erroneous
and the implied intent improbable, we may be thereby led to the form-
[4-7] When a will is presented for probate and discloses interlinea-
tions and erasures, it is obvious that, if they were made before the will
was executed, they form a part of it, and the document, as so changed
and altered, is the one which should be received; while, if they were
made after execution, they form no part of the will and are of no
effect whatever, unless they sufficiently support an inference of can-
cellation. It is claimed, on one side, that there is a presumption that
such changes were made before execution, and, on the other, that
the contrary presumption prevails, and it is said that there is a conflict
of authority on this subject. We have made as thorough an examina-
tion of the cases cited and others as we can, and, while there are
decisions indicating that the judges supposed there was a presumption
one way or the other, we are satisfied there is no substantial conflict,
and that the true rule is that there is no presumption of law; that
the burden of proof is on the proponent to show that any alteration
which he wishes to be considered effective was made before execution:
but the face of the paper and the obvious circumstances may amply
meet that burden, and the inference to be drawn is always one of fact.
If the will is drawn and executed with full formality and under care-
ful advice, it is customary to note such changes in the attestation clause.
If so noted, this supports the resulting inference of fact that they
are part of the will; if not, absence of the notation may or may not be
suspicious, depending on the extent of formality and care that seems
to have been observed; and the changes may be, in themselves, sus-
picious enough to indicate that they were made later, or so natural and
probable as to support the contrary inference. These conclusions
we draw from Wilton v. Humphreys, 176 Mass. 253, 257, 57 N. E. 374;
O'Connell v. Dow, 182 Mass. 541, 552, 66 N. E. 788; Wetmore v.
Carryl, 5 Redf. (N. Y.) 544; Re Dwyer's Will, 29 Misc. Rep. 382,
61 N. Y. Supp. 903, 909; Crossman v. Crossman, 95 N. Y. 145, 153,
154; Underhill on Wills (1900) 268; Greenleaf's Ev. 564. Cases
like Toebbe v. Williams, 80 Ky. 661, and Franklin v. Baker, 48 Ohio
St. 296, 303, 27 N. E. 550, 26 Am. St. Rep. 547, overlook the distinc-
tion between ordinary contracts and wills, pointed out in Page on Wills
Here’s what’s next.
This document can be searched. Note: Results may vary based on the legibility of text within the document.
Tools / Downloads
Get a copy of this page or view the extracted text.
Citing and Sharing
Basic information for referencing this web page. We also provide extended guidance on usage rights, references, copying or embedding.
Reference the current page of this Legislative Document.
The Federal Reporter with Key-Number Annotations, Volume 272: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, June-August, 1921., legislative document, 1921; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38843/m1/38/: accessed August 17, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.